Medical Board of Australia v Bhalla

[2018] QCAT 197

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Medical Board of Australia v Bhalla [2018] QCAT 197

PARTIES:

MEDICAL BOARD OF AUSTRALIA  
(applicant)

v

AJAY BHALLA

(respondent)

APPLICATION NO/S:

OCR096-14

MATTER TYPE:

Occupational regulation matter

DELIVERED ON:

28 June 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Carmody

Assisted by:
Prof Errol Maguire
Dr Glenda Powell

Mr Brad Taylor

ORDERS:

It is the order of the tribunal that:

1.   The time for bringing the application as prescribed by r 90 of the Queensland Civil and Administrative Rules 2009 (Qld) is extended to 23 April 2018, being the date the application for reopening, correction, renewal or amendment was filed.

2. Pursuant to s 135(1)(b) of the Queensland Civil and Administrative Tribunal Act 2009(Qld) the tribunal’s order of 21 September 2015 be corrected by adding a further order in the following terms:

“4. For the purposes of s 125(2)(b) of the National Law, Subdivision 2, Division 11, Part 7 of the National Law applies.”

3.   There be no order as to costs of the application to extend time or application for reopening, correction, renewal or amendment.

CATCHWORDS:

PROCEDURE – CIVIL PROCEDURE IN STATE AND TERRITORY COURTS AND TRIBUNALS – OTHER MATTERS – where the tribunal imposed conditions on the practitioner’s registration after a disciplinary hearing – where the tribunal did not state whether Subdivision 2, Division 11, Part 7 of the National Law applied to the conditions – where the decision should be corrected pursuant to s 135(1)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) to include an order that Subdivision 2, Division 11, Part 7 of the National Law applies

Health Practitioner Regulation National Law (Queensland) (National Law) ss 125(2)(b), 196(2)(b)

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 61, 135

Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 90

Medical Board of Australia v Leggett [2017] QCAT 312 Medical Board of Australia v Shah (No 2)
[2017] QCAT 221
Wakelin v Psychology Board of Australia
[2017] QCAT 89

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

1. The parties have applied jointly to correct a decision of the tribunal[1] by adding a further order giving the Board the power to review and remove conditions placed on Dr Bhalla’s registration[2] following a disciplinary hearing.

   [1]QCAT Act s 135(1)(b).

   [2]Pursuant to Health Practitioner Regulation National Law (Queensland) (National Law) s 196(2)(b).

2. The parties agree that conditions requiring Dr Bhalla to keep a register of Schedule 8 medications he prescribes and undergo audits of his practice have been fulfilled and should be removed.

3. The tribunal gave its decision on 21 September 2015.

4. A review period of 24 months “or until the outcome of any other concurrent process has been considered by the Board (whichever occurs first) was imposed.[3] Dr Bhalla has applied to the Board for a review of the conditions.

   [3]A review period is required by s 196(3) of the National Law.

5. The tribunal’s decision did not include an order that would permit the Board to review conditions. An order that Subdivision 2, Division 11, Part 7 of the National Law applies is required to enable the Board to review and remove registration conditions that have been imposed by the tribunal.[4]

   [4]National Law s 125(2)(b).

6. There have been many recent applications to correct or renew orders in the same fashion.[5]

   [5]See Medical Board of Australia v Shah (No 2) [2017] QCAT 221; Medical Board of Australia v Leggett [2017] QCAT 312; Wakelin v Psychology Board of Australia [2017] QCAT 89.

   Extension of time

7. Under the QCAT Rules, an application to correct orders must be made within 28 days.[6] The tribunal may extend a procedural time limit where there is no prejudice or detriment to a party to the proceeding.[7]

   [6]QCAT Rules r 90.

   [7]QCAT Act s 61(1), (2).

8. The parties state that the requirement for further orders enabling the Board to review and remove conditions only came to either party’s attention after the conditions imposed by the tribunal had been fulfilled.

9. In the circumstances it is appropriate to extend the time limit for filing to the date the application for correction was filed. 

   Application for correction

10. A review of registration conditions can be conducted by either the Board or the tribunal.[8] The parties seek orders that allow the Board to conduct the review and avoid reconvening the tribunal to remove conditions which have been satisfied.

    [8]National Law s 127.

11. The wording of order three (3) of 21 September 2015 clearly indicates the tribunal’s intention that the Board, not the tribunal, review the conditions imposed on Dr Bhalla after the review period ended.

12. To give effect to that intention the decision should have also stated that Subdivision 2, Division 11, Part 7 of the National Law applies. Not including an order to this effect is an accidental omission within s 135(1)(b) QCAT Act.

13. The tribunal is satisfied that it is appropriate to make the orders sought by the parties:

    1.The time for bringing the application for correction as prescribed by rule 90 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) be extended to the date of filing the application.

    2.Pursuant to s 135 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the order of Justice Carmody of 21 September 2015 be corrected by adding a further order in the following terms:

    “4. For the purposes of s 125(2)(b) of the National Law, Subdivision 2, Division 11, Part 7 of the National Law applies.”

    3.There be no order as to the costs of the application to extend time or the application for reopening, correction, renewal or amendment.